Advocacy

Pre-election advocacy

In advance of the Federal double dissolution election in July 2016, the Australian Lawyers Alliance (ALA) surveyed major parties on priority issues for our members. We outlined our main priorities, our policy on those priorities and asked key questions to gauge parties' positions on those priorities. We received comprehensive responses to most of our letters.

The ALA has engaged in numerous consultations regarding the NDIS and the NIIS. We believe it is essential that common law rights are retained as both schemes are implemented, and that autonomy and choice for individuals engaging with the schemes must underpin policy. Schemes which maintain meaningful common law access are demonstrably sustainable, and provide consumer choice.

A critical issue in both schemes is funding. Initial predictions regarding the volume of people engaging with the NDIS appear to have been overestimated, while predictions regarding funding requirements appear to have been underestimated. This information is being released in a climate of increasing economic uncertainty, as budgets across the board face cuts. The lack of clarity that persists regarding the NIIS means this data is not available for that scheme.

Question:

Do you agree that autonomy and choice must underpin individuals’ engagement with the NDIS and any proposed NIIS, including retaining their common law rights?

Party (addressee)

Response

Coalition

(The Hon Christian Porter MP, Minister for Social Services)

As you are no doubt aware, the Australian Government is in a caretaker role. This will continue until such time as the outcome of the election is known. In the interim, the following factual information may be helpful.

The NDIS does not extinguish people’s common law rights.

The National Disability Insurance Scheme Act 2013 (The Act) creates the framework for the NDIS. It includes eligibility criteria, age requirements and what constitutes reasonable and necessary support. The Act provides assurance that people with disability will be able to receive supports based on their needs, and that they will have choice and control over that support.

The NDIS is on track to be delivered on time and on budget. In 2011, the Productivity Commission estimate that once fully operational in 2019-20, the NDIS will assist around 460,000 people costing $22 billion per year.

In 2014 legislation was introduced into the Federal Parliament that would dramatically expand the Comcare scheme. It seeks to expand the number of workers covered by the scheme, by opening it up to companies operating across state and territory borders, as well as reduce entitlements under it.

The ALA has worked extensively on this issue and is concerned that the proposed changes will have a negative impact on workers compared to their rights under relevant state workers compensation schemes. The new legislation appears to focus on minimising costs at the expense of injured workers rights. Expanding Comcare under the new legislation will dramatically reduce entitlements for workers compared to their rights under state and territory schemes, leaving them with significantly reduced levels of compensation compared to current arrangements, or possibly no compensation at all. It would also negatively affect the sustainability of many well-functioning state and territory schemes.

Workplace injury often results from employers failing to have or enforce safe systems of work. This is likely to be exacerbated under the proposed legislation, as state and territory schemes employ many more workplace safety inspectors per worker than does Comcare. Instead of expanding the scheme and reducing the rights of workers, the ALA believes it would be more fruitful to focus on addressing any defects in existing state and territory schemes.

Question:

Do you agree that the first priority of all workers compensation schemes should be to ensure adequate workplace safety regulation and fair compensation for injured workers?

The Australian Labor Party is the only party that can form government that will protect Comcare. There were three pieces of legislation presented to the 44th Parliament by the Coalition regarding Comcare. Each sought to weaken the scheme and each were opposed by Labor. Only the Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015 successfully passed the Parliament.

The Orwellian titled Improving the Comcare Scheme Bill sought to exclude workers from the Comcare scheme and significantly reduced the compensation available for those who remained eligible. The Bill attempted to reduce the liabilities of the Comcare scheme at the expense of people injured at work. Labor also believed the 2014 Bill would have directly and indirectly risked the workplace health and safety of Australian workers. It sought to remove the rights of Australian workers to fair and reasonable cover when they suffer the misfortune of a work related illness or injury. It is thanks to Labor’s strong opposition to these Bills that they were never enacted.

Labor is committed to improving Comcare to ensure it is an effective regulator and that injured workers get fair and adequate compensation for their injuries or illness, and are rehabilitated and helped to return to work in a suitable role. We will oppose any changes to Comcare to allow employers to exit other Australian Workers’ Compensation schemes, thereby undermining the viability of those schemes. Also, Labor does not support any move to outsource or privatise Comcare.

On the specifics of your letter, Labor does believe that it must be a priority of all workers compensations schemes to ensure adequate workplace safety regulation and fair compensation for workers. Labor also firmly believes it should be a priority of all schemes to do all within their capacity to return people to work.

The Australian Greens are strong supporters of workers compensation and the protection of occupational health and safety, we will continue to fight hard in defence of adequate workplace protections and we will continue to support positive reform.

For this reason we have opposed recent legislation before the Parliament which has threatened the current arrangements for workers compensation such as the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014.

In relation to your specific questions.

We agree that the first priority of all workers compensation schemes should be to ensure adequate workplace safety regulation and fair compensation for injured workers.

The Royal Commission has done extensive work on redress and civil litigation. In August 2015 they published a report detailing their research and discussing their findings to date.

The ALA has previously advocated for a national scheme to ensure consistency in redress available to survivors of child abuse. For those who do not want to engage with the scheme, common law rights should also be retained.[1] Our position is that compensation available under any scheme should be sufficient to reflect the seriousness of the crimes committed against survivors and the impacts it has had on their lives. Figures in line with those seen in the Irish Residential Institutions Redress Board, in which a maximum award of €300,500 was made, are appropriate.

For those who choose not to engage in a redress scheme, civil litigation should remain an option. To that end, it has been acknowledged that victims of abuse of this type commonly take decades to disclose what has happened to them. As a consequence, the effect of limitation of actions legislation is often a barrier to the viable pursuit of civil remedies. Victoria and NSW have moved to legislatively remediate this. The Commonwealth, via COAG, should seek to facilitate harmonisation of limitations legislation to remove barriers to civil action for victims of this type of abuse.

Question:

Do you agree with the recommendation of the Royal Commission into institutional responses to child sexual abuse for a single national redress scheme to be established by all Australian governments? What steps do you propose to take to encourage states and territories that have not yet abolished limitations periods for claims relating to child sexual abuse, to do so?

Party (addressee)

Response

Coalition

(Senator the Hon George Brandis QC, Attorney-General)

The issues you raise about a national redress scheme for victims of child sexual abuse and statutory limitation periods for civil claims are ongoing matters of policy and it would be inappropriate for the government to deal with them during a caretaker period.

Redress was discussed at the 27-28 April 2016 meeting of the Law, Crime and Community Safety Council (the LCCSC). The LCCSC consists of ministers with responsibilities for law and justice, police and emergency management. Each Australian state and territory, the Australian Government and the New Zealand Government is represented by a maximum of two ministers. In relation to redress the Communique for the meeting states that:

Ministers noted an update from the Commonwealth and that consultation will occur through First Ministers’ departments.

ALP

(The Hon Mark Dreyfus QC MP, Shadow Attorney-General)

Labor established the Royal Commission into Institutional Responses to Child Sexual Abuse to give the thousands of people affected by these evil crimes an opportunity to finally be heard. In its final report into redress and civil litigation, the Royal Commission determined that around 60,000 survivors of child sexual abuse should be given access to redress. A Shorten Labor Government will establish a single National Redress Scheme for survivors of institutional child sexual abuse.

The Royal Commission has recommended that appropriate redress for survivors include direct personal responses, counselling and psychological care as well as monetary payments. The Royal Commission recommended the cost of redress be met by the perpetrators of the abuse, with the Federal Government and the States and Territories acting as a funder of last resort.

Labor calls on Malcolm Turnbull to take a bipartisan approach to redress for survivors of child sexual abuse and commit to a truly national redress scheme.

This is the number one recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, and the preferred approach of survivors themselves.

Unfortunately, the Turnbull Liberal Government has refused to commit to a national scheme, nor make any funding commitment.

This has been truly devastating for survivors, their families and advocates, who all want to see survivors get the redress they deserve.

If there was ever an issue that needed bipartisanship, this should be it.

Labor announced our commitment to implementing the recommendations of the Royal Commission in October 2015.

Under Labor, there will be a truly national redress scheme.

This will be administered by a National Redress Agency, with input from a Council of survivors, their representatives and experts on the impact of abuse.

Labor has committed $33 million to the scheme, including an initial $20 million to establish the National Redress Agency, which will work to get the scheme established.

Labor is committed to the Commonwealth acting as a funder of last resort where organisations at which abuse occurred no longer exist.

However, where those institutions still exist, Labor is committed to ensuring the institutions themselves are required to pay redress. That is only fair.

Labor set up the Royal Commission, and we are determined to see survivors get the redress they deserve.

We honour again the tireless advocacy of survivors, their families and representatives without whom there would have been no Royal Commission and whose advocacy now continues to ensure survivors get the redress they deserve.

I also confirm that the Greens are committed to implementing the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, including for a single national redress scheme. Survivors deserve a fair system that ensures just redress across the country, and provides appropriate counselling and psychological support. As part of our costed election platform, the Greens have committed to a national redress scheme, to be implemented in line with the recommendations of the Royal Commission. Our proposal for the redress scheme would include:

Redress payments ranging from $10,000 to $200,000

Providing counselling under Medicare, and

Providing case management style support.

In line with the recommendations of the Royal Commission, the scheme would be funded by institutions. Where this is not possible, then Commonwealth and state and territory governments would split the responsibility for providing funding of last resort.

The Nick Xenophon Team supports the establishment of a single national redress scheme to be established by all Australian governments. We will work with the Australian Lawyers Alliance and other stakeholders to identify pathways for states and territories to abolish limitation periods for claims relating to child sexual abuse.

The recent revelations about unethical conduct in the life insurance sector were unfortunately not news to members of the ALA. Our members have worked directly with injured or ill policy holders who have had to fight insurance companies seeking to evade their obligations under policies.

The ALA has advocated for a three part reform to be implemented, focusing on:

identifying bad behaviour and calling it out via an Inquiry,

establishing enforceable minimum standards that insurance policies should meet, particularly in relation to total and permanent disability and death policies provided via superannuation funds, through a Superannuation Industry (Supervision) Act 1993 amendment, and

encouraging and ensuring higher standards of behaviour within the sector through the establishment of a new code of behaviour.

The Inquiry must have the powers of a Royal Commission to investigate the sector in light of our members’ experiences and broader revelations. This Inquiry could consider the techniques being used by insurance companies to evade their responsibilities to policy holders and how wide spread the problem is.

Question:

Do you agree that an enforceable code of practice is required for the insurance and superannuation sectors, given recent revelations of unethical behaviour?

Party (addressee)

Response

Coalition

(The Hon Kelly O’Dwyer MP, Assistant Treasurer)

The Government, by convention, assumed a caretaker role on 9 May prior to the election and this will continue until the election result is known or, in the event of a change of government, when the new government is appointed.

For this reason the Government is unable to respond to correspondence that addresses policy issues during this period. You may wish to write again once the outcome of the election is known.

In light of the recent allegations of unethical conduct in the life insurance industry, Labor agrees that there is a need for a Code of Conduct to set out best practice standards for insurers, including in relation to underwriting and claims management.

As you would be aware, the Government has asked the Financial Services Council (FSC) to draft a Life Insurance Code of Practice for the industry.

It is Labor’s view that any Code drafted by the FSC will need to be robust and respond specifically to the industry shortcomings that were exposed recently. We agree that an important element of this is a mechanism of enforcement of the Code.

When the draft Code is released, Labor will carefully examine it to determine whether it lives up to the expectations of the general public for a life insurance sector that acts ethically and in the interests of consumers.

Labor will also consult broadly with consumer advocacy groups on any draft Code to ensure it meets the highest reasonable standards of consumer protections.

I appreciate your advocacy for a Royal Commission, which we believe is the only way to expose and address the systemic problems we see in our financial services industry.

Greens

(Senator Peter Whish-Wilson, spokesperson on Finance)

The Greens support a Royal Commission into the banking and insurance sector (draft terms of reference). We led the call for such an inquiry following the revelations of misconduct within the financial services sectors, including the wealth management and insurance arms of vertically integrated banks. We believe that a Royal Commission is needed to understand the full extent of the problems within the sector, and to properly inform the policy responses.

We support some form of ‘enforceable’ standard for the insurance and superannuation sector. However, we want to keep open the possibility of these standards being provided for directly or indirectly through law or regulations regarding the banking and insurance sectors’ duty of care to their customers.

Nick Xenophon Team

The Nick Xenophon Team agrees with the development of an enforceable code of practice for the insurance and superannuation sectors. Furthermore, we support the course of action proposed by the Australian Lawyers Alliance in addressing the issue of unethical behaviour in the insurance and superannuation sectors, including reforms that focus on:

identifying bad behaviour and calling it out via an Inquiry,

establishing enforceable minimum standards that insurance policies should meet, particularly in relation to total and permanent disability and death policies provided via superannuation funds, through a Superannuation Industry (Supervision) Act 1993 amendment, and

encouraging and ensuring higher standards of behaviour within the sector through the establishment of a new code of behaviour

Access to justice is a foundation issue for the ALA. Funding of community legal centres, delays in judicial appointments, reductions in funding for courts and user-pays fee systems all undermine the ability of individuals to avail themselves of protections found under law.

In 2014 federal funding for community legal centres (CLCs) was slashed by $49 million.[2] While some of this was later returned when the impact of these cuts became clear, a ban on CLCs using government funds for advocacy persists. This is having a direct impact on the quality of the information that is available to government in policy development. It is also having a chilling effect on the community sector more broadly, as they see the government responding to criticism by defunding those critics.[3]

At the same time, access to courts is being undermined by fee increases and delays in judicial appointments. As demand for court services continues to increase, delays in setting court dates are contributing to trauma for people needing resolution to their legal problems, as well as causing waste as evidence becomes out of date. Fee increases mean that justice is out of reach for many on middle and low incomes, undermining the rule of law and the proper administration of justice.[4]

Question:

Do you support adequate funding for the community legal sector and the court system to ensure a properly functioning legal system and access to justice without unreasonable delays?

Party (addressee)

Response

Coalition

(Senator the Hon George Brandis QC, Attorney-General)

With regards to funding for Community Legal Centres, the five year National Partnership Agreement on Legal Assistance Services commenced on 1 July 2015 and provides $1.3 billion of Commonwealth funding for legal aid commissions and Community Legal Centres. This is the first time Commonwealth funding for Community Legal Centres has been included in a National Partnership Agreement. Under the National Partnership Agreement, states are responsible for distributing available Commonwealth funding to individual Community Legal Centres, informed by collaborative, evidence-based planning of services in each state.

ALP

(The Hon Mark Dreyfus QC MP, Shadow Attorney-General)

In government, Labor delivered a boost of $30 million over two years for Legal Aid Commissions.

The Abbott-Turnbull Government has cut $24 million from Community Legal Centres, $15 million from Legal Aid Commissions, and $13 million from Aboriginal and Torres Strait Islander Legal Services.

160,000 people were turned away from Community Legal Centres last year alone and Centres face a 30 per cent funding cut on 1 July 2017, which will see many centres having to close their doors to clients.

That tells you all you need to know about the difference in priorities between Labor and Liberal.

Community Legal Centres help vulnerable people at times of great need, when they are unable to pay for legal help themselves.

A Shorten Labor Government will ensure frontline legal services receive approximately $43 million in funding over three years from 1 July 2016 so they can keep doing their vital work.

Legal Aid funding is a joint arrangement with the States and Territories. A Shorten Labor Government would work with the States and Territories to negotiate appropriate funding arrangements.

Access to justice is a fundamental right of all Australians. Only a Shorten Labor Government will ensure that right is safeguarded – the only guarantee you will get from the Turnbull Government is further funding cuts.

Greens

(Senator Nick McKim, spokesperson for Legal Affairs)

The Greens are absolutely committed to adequate funding for the community legal sector, Legal Aid, and the court system.

Access to justice is a fundamental human right, and Legal Aid and Community Legal Centres provide much needed support and legal advice to people who would otherwise be on their own.

We believe that investment into legal services actually saves the community money. Underinvestment merely shifts costs to other areas of government like health, housing and child protection.

The government's cuts mean thousands of people in need of assistance are turned away, with a direct impact on their lives and the lives of their families and communities.

The government recently ignored its own Productivity Commission report which recommended significant increases in funding for Legal Aid and CLCs to help reduce pressure on a court system already under significant strain.

The government has also engaged in an ideological attack on environmental defenders’ offices, stripping $10 million of badly needed funding.

The Greens have also consistently opposed the government’s increases in court fees, including the divorce tax, which would have put even greater strain on families in crisis.

The Australian Greens will soon be announcing a comprehensive Access to Justice policy suite that provides the resources needed for the community legal sector, Legal Aid and courts to do their jobs in a comprehensive and timely way.

Nick Xenophon Team

The Nick Xenophon Team recognises the crucial role community legal centres play in the provision of legal advice and access to justice. We strongly support adequate funding for these services. We also support adequate funding to allow for a properly functioning legal system, especially to address unreasonable delays.

The Work Health and Safety Act 2011 (Cth) applies to all Commonwealth workplaces in Australia and in part in Commonwealth workplaces outside of Australia. The Act specifies that it applies to Australian territories and extraterritorially in line with section 15.1 of the Criminal Code. The Act applies to the health and safety both of workers and others in the workplace.

There appears to be a lack of clarity on the part of Commonwealth Departments and Agencies regarding their obligations under this Act where the workplace is located outside of Australia. That lack of clarity also appears to exist within Comcare, the Agency tasked with ensuring the Act is implemented. This means that Commonwealth workers and others in the workplace are not benefitting from the protections found in the Act, potentially putting their health and safety at risk.

Question:

Do you agree that all Commonwealth workplaces should be covered by Commonwealth workplace health and safety legislation, wherever they are in the world?

In relation to the matter you raise regarding all Commonwealth workplaces being covered by Commonwealth workplace health and safety legislation, no matter wherever they are in the world, I’d be happy to meet with you to learn more about the matter and discuss the detail with you.

We also agree that that all Commonwealth workplaces should be covered by Commonwealth workplace health and safety legislation, wherever they are in the world.

Nick Xenophon Team

The uncertainty surrounding the enforceability of Commonwealth workplace health and safety legislation in external Commonwealth territories must be resolved. The Nick Xenophon Team agrees that all Commonwealth workplaces should be covered by Commonwealth workplace health and safety legislation, wherever they are in the world.

[2] An additional $15 million was cut from Legal Aid funding, meaning the cuts to the sector totalled $64 million: http://www.abc.net.au/news/2016-02-23/government-cuts-to-legal-services-'undermining-democracy'/7191022.